Examination

In trial practice, the interrogation of a witness to elicit his or her testimony in a civil or criminal action, so that the facts he or she possesses are presented before the trial of fact for consideration.

In the law governing real property transactions, an investigation made into the history of the ownership of and conditions that exist upon land so that a purchaser can determine whether a seller is entitled to sell the land free and clear of any claims made by third persons.

In patent law, an inquiry made at thePatent and Trademark Officeto determine the novelty and utility of an invention for which a patent application has been filed and whether the invention interferes with any other invention.

examination

n. 1) the questioning of a witness by an attorney. Direct examination is interrogation by the attorney who called the witness, and cross-examination is questioning by the opposing attorney. A principal difference is that an attorney putting questions to his own witness cannot ask "leading" questions, which put words in the mouth of the witness or suggest the answer, while on cross-examination he/she can pose a question that seems to contain an answer or suggest language for the witness to use or agree to. 2) in bankruptcy, the questions asked of a debtor by the judge, trustee in bankruptcy, attorneys or even creditors, to determine the state of the debtor's affairs. 3) in criminal law, a preliminary examination is a hearing before a judge or other magistrate to determine whether a defendant charged with a felony should be held for trial. Usually this is held by a lower court and if there is any substantial evidence to show a felony has been committed by the defendant he/she is bound over to the appropriate court for trial, but otherwise the charge will be dismissed by the judge. (See: testimony, witness, direct examination, cross-examination, bankruptcy)

EXAMINATION, crim. law. By the common law no one is bound to accuse himself.
Nemo tenetur prodere seipsum. In England, by the statutes of Philip and
Mary, (1 & 2 P. & M. c. 13; 2 & 3 P. & M. c. 10,) the principles of which
have been adopted in several of the United States, the justices before whom
any person shall be brought, charged with any of the crimes therein
mentioned, shall take the examination of the prisoner, as well is that of
the witnesses, in writing, which the magistrates shall subscribe, and
deliver to the officer of the court where the trial is to be had. The
signature of the prisoner, when not specially required by statute, is not
indispensable, though it is proper to obtain it, when it can be obtained. 1
Chit. Cr. Law, 87; 2 Leach, Cr. Cas. 625.
2. It will be proper to consider, 1. The requisites of such
examination. 2. How it is to be proved. 3. Its effects.
3.-1. It is required that it should, 1st. Be voluntarily made,
without any compulsion of any kind; and, 2d. It must be reduced to writing.
1st. The law is particularly solicitous to let the prisoner be free in
making declarations in his examination; and if the prisoner has not been
left entirely free, or did not consider himself to be so, or if he did not
feel at liberty wholly to decline any explanation or declaration whatever,
the examination is not considered voluntary, and the writing cannot be read
in evidence against him, nor can parol evidence be received of what the
prisoner said on the occasion. 5 C. & P. 812; 7 C. & P. 177; 1 Stark. R.
242; 6 Penn. Law Journ. 120. The prisoner, of course, cannot be sworn, and
make his statement under oath. Bull. N. P. 242; 4 Hawk. P. C. book 2, c. 46,
Sec. 37; 4 C. & P. 564. 2a. The statute requires that the examination shall
be reduced to writing, or so much as may be material, and the law presumes
the magistrate did his duty and took down all that was material. Joy on
Conf. 89-92; 1 Greenl. Ev. Sec. 227. The prisoner need not sign the
examination so reduced to writing, to give it validity; but, if being asked
to sign it, he absolutely refuse, it will be considered incomplete. 2 Stark.
R. 483; 2 Leach, Cr. Cas. 627, n.
4.-2. The certificate of the magistrate is conclusive evidence of the
manner in which the examination was conducted. 7 C. & P. 177; 9 C. & P. 124;
1 Stark. R. 242. Before it can be given in evidence, its identity must be
proved, as well as the identity of the prisoner. When the prisoner has
signed the examination, proof of his handwriting is sufficient evidence that
he has read it; but if he has merely made his mark, or not signed it at all,
the magistrate or clerk must identify the prisoner, and prove that the
writing was duly read to him, and that he assented to it. l Greenl. Ev. Sec.
520; 1 M. & Rob. 395.
5.-3. The effect of such an examination, when properly taken and
proved, is sufficient to found a conviction. 1 Greenl. Ev. Sec. 216.

EXAMINATION, practice. The interrogation of a witness, in order to ascertain
his knowledge as to the facts in dispute between parties. When the
examination is made by the party who called the witness, it is called an
examination in chief. When it is made by the other party, it is known by the
name of cross-examination. (q.v.)
2. The examination is to be made in open court, when practicable; but
when,: on account of age, sickness, or other cause, the witness cannot be so
examined, then it may be made before authorized commissioners. In the
examination in chief the counsel cannot ask leading questions, except in
particular cases. Vide Cross-examination; Leading question.
3. The laws of the several states require the private examination of a
feme covert before a competent officer, in order to pass her title to her
own real estate or the interest she has in that of her husband: as to the
mode in which this is to be done, see Acknowledgment. See, also, 3 Call, R.
394; 5 Mason's R. 59; 1 Hill, R. 110; 4 Leigh, R. 498; 2 Gill & John. 1; 3
Rand. R. 468 1 Monr. R. 49; 3 Monr. R. 397; 1 Edw. R. 572; 3 Yerg. R. 548 1
Yerg. R. 413 3 J. J. Marsh. R. 241 2 A. K. Marsh. R. 67; 6 Wend. R. 9; 1
Dall. 11, 17; 3 Yeates, R. 471; 8 S. & R. 299; 4 S. & R. 273.

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